United States v. Douglas Healy

553 F. App'x 560
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 29, 2014
Docket12-6008, 12-6367
StatusUnpublished
Cited by8 cases

This text of 553 F. App'x 560 (United States v. Douglas Healy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Douglas Healy, 553 F. App'x 560 (6th Cir. 2014).

Opinions

OPINION

McKEAGUE, Circuit Judge.

Appellant Douglas Patrick Healy challenges the sentence imposed after he pleaded guilty to one count of wire fraud. The district court sentenced Healy to a prison term of 57 months, ordered restitution in the amount of $918,866, ordered disgorgement of Healy’s shares in Digital Storage Solutions, LLC, and imposed a $50,000 fine. Healy asserts three claims of error, contending the district court (1) improperly calculated the monetary loss attributable to his crime; (2) erred in ordering restitution; and (8) erred in imposing a fine. For the reasons that follow, we deny all three claims and affirm the judgment.

I. FACTUAL BACKGROUND

Barb and Max Smith, a retired couple from Kentucky, developed the idea for a wallet-sized card that could digitally store a person’s medical information (“medical card”). When necessary, the medical card could be plugged into any computer so that doctors or paramedics could access the individual’s medical information electronically. To develop and market their idea, the Smiths incorporated a company called KWS, LLC 1 contracted with local computer programmer Wendell Wilson to create the software for the medical card, identified a company to provide the hardware, and applied for a patent on both the medical card and its technology in 2007.

In 2008, the Smiths hired Healy and his company, Digital Storage Solutions, LLC (“DSS”), to market the medical cards. Healy was hired for a probationary period of employment, but when he failed to make any sales within ninety days, the Smiths declined to renew his contract. Nonetheless, Healy continued to covertly promote the medical cards as a way to raise capital for his company, DSS.

Healy conned investors into giving capital to DSS by telling them his company had the right to sell the medical cards. He represented that he developed the idea, hardware and software, and owned several patents on the technology. Healy also misrepresented the capabilities of the medical card, telling investors and potential clients it had features it did not have. He touted contracts for sales of medical cards that were nonexistent, including contracts with the Department of Defense and the Center for Rural Development. He told investors and clients that Wilson was the chief technology officer for DSS, held various degrees, and was a NASA scientist, all of which were untrue. Healy also lied about his own education and prior business experience and made misrepresentations as to why he was pardoned for a prior fraud conviction. Healy gave investors an equity interest in the company, but he retained approximately 50% ownership of DSS.

Healy’s scheme worked as follows. Healy obtained money or capital from investors on the premise that he would market the medical card to large companies. He would then fly around the country and make sales pitches to companies. In the [563]*563sales pitches, Healy would promise that the medical cards could do whatever the company wanted the cards to do, and he would say that DSS had whatever infrastructure the client needed. In truth, DSS did not have the rights to the software or hardware for the cards, the cards could not do everything he promised, and DSS did not have the necessary infrastructure to support larger clients. The sales pitches often impressed clients, but when clients asked to see a functioning card or wanted to close a contract for a purchase of cards, Healy would disappear for weeks at a time or falsely claim that he had cancer and could not attend the meeting.2 Of course, the reason Healy could not close a sale was because the product, as represented, did not exist. Healy never actually completed a deal for a sale of medical cards. Nonetheless, he used the “business meetings” as a way of leading investors to believe a big sale was imminent and enticing them to contribute more to help close the deal.

Wilson eventually sued Healy, seeking a declaratory judgment as to the ownership of the intellectual property. The Smiths were joined as parties to the suit, and the parties settled the lawsuit in 2010. Healy received ownership of the technology and the Smiths received a note, signed by DSS and personally guaranteed by Healy, for $350,000.

Between January 2009 and September 2011, Healy raised and spent about $1.4 million of investors’ money. He spent much of this money on trips for “business meetings,” including trips to Utah for meetings with two investors. Healy opted for luxury hotels, rented expensive cars, booked airline tickets at the last minute, and dined at expensive restaurants during these “business trips.” He also spent almost a quarter of a million dollars traveling to Ghana to purportedly close a sale of medical cards to the Ghanaian government. The deal appears to have been nonexistent, but investors were misled by a forged letter of intent. Healy also spent investor money on trips to Italy and on diamond necklaces.

Notwithstanding the fraud, the advisory board of DSS elected to continue developing the medical cards in an attempt to make the company profitable under different leadership. At the time of Healy’s sentencing, DSS was a going concern and had entered into at least one legitimate contract for the sale of cards.

II. PROCEDURAL HISTORY

In October 2011, Healy was indicted on nineteen counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of securities fraud, in violation of 15 U.S.C. § 78j(b). In February 2012, Healy pleaded guilty to one count of wire fraud. For purposes of calculating Healy’s specific offense characteristics under the Sentencing Guidelines, the government, Healy’s counsel, and the probation officer who prepared the Presentence Report agreed to recommend using Healy’s gain as the measure of loss, as discussed in U.S.S.G. § 2B1.1 cmt. n. 3(B).

At sentencing, the district court rejected the recommendation and determined that the intended loss was the appropriate measure of loss under § 2B 1.1. The court calculated the intended loss to be $1.4 million, the total amount raised from investors. The district court imposed a sentence of 57 months’ imprisonment and a fine of $50,000. It also ordered Healy to relinquish his ownership interest in DSS as restitution. In a later hearing, the [564]*564court found Heal/s ownership interest to have no cognizable value at the time he disgorged it and ordered him to pay additional restitution to defrauded investors in the amount of $918,866.

III. STANDARD OF REVIEW

Sentences imposed in the post-Booker era, are subject to review for procedural and substantive unreasonableness. United States v. Hag-Hamed, 549 F.3d 1020, 1023 (6th Cir.2008). Both types of challenge are reviewed under the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

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553 F. App'x 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-douglas-healy-ca6-2014.